Electrical Workers Ibew Local 11 (Anco Electrical)

ELECTRICAL WORKERS IBEW LOCAL 11 (ANCO ELECTRICAL) 183 International Brotherhood of Electrical Workers, Local Union No. 11, AFL-CIO (Anco Electrical Contractors, Inc.) and John G. Kelley and Albert E. Kelley. Cases 31-CB-4422-1 and 31- CB-442272 11 December 1984 DECISION AND ORDER BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS This case' raises the issue of whether a union violated Section 8(b)(1)(A) and (2) of the Act by attempting to cause the discharge of 11 employees hired after the commencement of an economic strike. The administrative law judge found that the Respondent violated those sections of the Act - by attempting to cause the discharge of nine 'of these employees. Our review of the record and of rele- vant precedent leads us to conclude that the Gen- eral Counsel has failed to meet its burden of prov- ing that the Respondent unlawfully attempted to cause the discharge of any employee. We, acco-rd- ingly, shall dismiss the complaint in its entirety. According to the credited testimony, 2 the perti- nent facts are as follows. From 12 June 1981 until 21 July 1981, the Respondent was involved in an economic strike against the Employer. In order to continue its operations, the .Employer advertised and hired 11 employees before the end of July, in- cluding the Charging Parties, John Kelley and Albert Kelley, hired 31 July. The record does not provide the identity or date of hire of any of the other nine employees. In the meantime, on 21 July, the strike ended and all striking employees soon re- turned to work. It is undisputed that the National Electrical Con- tractors Association (NECA), the employer-asso- ciation of which , the Employer had been a member since 1977, 3 and the Respondent executed a ' On 16 December 1983, Administrative Law Judge Jesse Kleiman Issued the attached decision The Respondent and' the Charging Parties filed exceptions and a supporting brief The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel The Board has considered the decision and record in light of the ex- ceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order The Respondent and the Charging Parties have each excepted to some of the Judge's credibility findings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 3 According to the uncontradicted testimony of the Employer's presi- dent Timothy Anderson, the Employer has a letter of assent with NECA by which It is bound to agreements negotiated on its behalf "Return-to-Work Agreement" bearing. an "Ap- proved" .clate of 21 July 1981. This agreement pro- vides in pertinent part: . Upon -ratification of a new collective-bargain- ing agreement between I.B.E'.W.. Local Union No. 11 and Contractors represented by the Los Angeles Chapter, National Electrical Con- - tractors Association, the following procedures shall govern the return to work of employees of the employer-Contractor on the Conclusion of the work stoppage. • •" 1. -Contractors ,shall first recall to employment those employees who were dispatched by Local 11 to that contractor, and were em- , ployed on the job on the date of work stop- page; 2. If such employees choose not to return, or are unavailabie,' or 'are not sufficient to meet the contractors', ,[sic] need, the, contractor shall resort to the appropriate Local Union hiring hall, to request additional employees in accord with the contractual dispatch rules; • • , 3. Employees hired by contractors, during the • work -stoppage may report- to the appropri- ate Local Union hiring hall and may, if qualified under the regular procedures of the contractual -dispatch procedure, register for dispatch4rom Local .Union 11. It is also undisputed lhat NECA and the ,Respond- ent entered .a new collective-bargaining agreement which provides in pertinent part: Sec. 4.05(a). The Union shall maintain a regis- ter of applicants for employment . . . . Sec. 4.06. If the registration list is exhausted and the Local 'Union is unable to refer appli- cants for employment . . . the Employer shall be free to secure applicants Without using the Referral Procedure but, such applicants, if hired, shall have the status of "temporary em- ployees." . . . Sec. 4.07. The Employer shall notify the Busi- ness Manager promptly . . of such "tempo- rary employees" and shall replace such "tem- porary employees" as soon as registered appli- cants for emf)loyment are available under the Referral Procedure. Beginning in mid-August and continuing until the end of December 1981, the Respondent at- tempted to cause the Employer 'to discharge the employees hired after the commencement of the strike, contending that -because they were not re- ferred by the hiring hall, they wefe temporary em- 273 NLRB No. 28 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees and subject to discharge pursuant to the above provisions of the collective-bargaining agree- ment. (Pursuant to these demands, the- Respondent also dispatched .unsolicited referrals to the Employ- er's jobsites.) The Employer responded,- that these employees were not temporary within the meaning of the contract, but were instead permanent re- placements hired during the strike and covered by the return-to-work agreement. The judge properly found that the. lawfulness of the Respondent's actions depends on whether the employees it sought to discharge are permanent re- placements hired during the 'strike 'or employees hired after the strike at a time \'hen the new col- leetive-bargainirig agreement was iri effect. If the employees are permanent replacements, then the Respondent's attempt to discharge them is, for the reasons as -stated 'by the judge, a -violation of Sec- tion 8(b)(1)(A) and (2). Alternatively, if the em- ployees were hired after' the strike -at 'a time when the collective-bargaining agreement was in effect, the Respondent's attempt to discharge them is a lawful exercise of its bontraetual-right to replace temporary employees with employees referred through the Respondent's hiring hall.. Based on the credited testimony, the judge found that the strike ended' 21 July. He further found that the collective-bargaining agreement • was effective 22 July 1981. 4 He found, therefore; that John and Albert Kelley, wild • were hired 31 July, were hired after the strike . had ended and at a time when the collective-bargaining agreement was in effect. He, accordingly, reasoned that they were temporary employees under the collective-bargaining agree- ment and thus lawfully subject to replacement under the hiring hall terms of the agreement. On this basis, he recommended dismissal of the allega- tions that the Respondent violated the Act by de- manding that John and Albert Kelley be dis- charged and by dispatching referrals 'to the Em- ployer's jobsites for this purpose. 5 We agree... With respect' to the nine Other employees, how- ever, the judge found that it is reasonable to assume that some if not all were hired before the strike ended on 21 July. He based this assumption 4 He noted there-was 'no evidence that the collective-bargaining agree- ment was backdated or not signed on its effective date The Charging Parties contend_ that the agreement was not in effect on the date they Were hired However, the record substantiates that the Respondent and the Employer were bound by a collective-bargaining agreement, with hiring hall provisions whose validity has not been challenged, with an ef- fective date of 22 July 1981 This agreement, which by its own terms is effective as of 22 July 1981, was 'presented Into evidence as a joint exhibit of the Respondent and the General Counsel The Charging Parties did not object to its acceptance Into the record They did not then, nor do they now, offer any evidence to show that the agreement was, backdated or not in effect on its stated effective date No contention was made that the content or operation of the hiring hall provisions with regard to any of the 11 employees was unlawful on President Anderson's testimony that the Em- ployer's operations had "virtually ceased" at the start of the strike on 12 June and that from that date forward it was compelled to hire employees to replace the strikers in order to maintain its busi- ness. Relying on this assumption, he concluded that the nine employees were permanent replacements for economic strikers and that, therefore, the Re- spondent could not lawfully demand their dis- charge as temporary employees under the hiring hall provisions of its collective-bargaining agree- ment-. The judge, accordingly, concluded that the Respondent unlawfully attempted to cause the dis- charge .of these employees, including by the dis- patching of unsolicited referrals to the Employer's jobsites. We do not agree. - • There is no evidence of the dates of hire of any of the nine employees. Anderson testified that the Employer began advertising positions after the strike -began on 12 ,June and that the nine employ- ees were hired by 31 July. There is no evidence that these employees were any different from the Kelleys, who were hired after the strike ended. The judge's assumption that these employees were hired while the strike was ,in progress is unsubstan- tiated -conjecture. Consequently, his finding that the nine employees were not subject to a lawful demand for discharge under either the return-to- work agreement or the collective-bargaining agree- ment is also unsubstantiated conjecture and not properly a basis for a finding of a violation of the Act. . It is well settled that when a union attempts to cause the discharge of an employee it has the burden of proving that this action was necessary to the effective performance of its function of repre- senting its constituency. 6 Here, the Respondent showed that it executed a valid "Return-to-Work Agreement" with the Association of which the Employer is a member on 21 J,uly 1981 and no party to this proceeding challenges the fact that this agreement was legally binding on the parties signatory thereto. The Respondent also showed that it had a hiring hall arrangement in effect with 'the EmPloyer on 22 July. By demonstrating that it was making the discharge demands pursuant to hiring hall provisions, the Respondent met its burden. 7 The General Counsel's burden is to sub- stantiate that any of the employees whom the Re- spondent attempted to have discharged were hired at a time when the hiring hall provisions were not in effect or under conditions by which they were 6 E g ,-Boilermakers Local 40 (Envtrotech Corp ), 266 NLRB 432 (1983) "7 See, e g, Laborers Local 596 (Hood Contractors), 216 NLRB 778 ' (1975) ELECTRICAL WORKERS IBEW LOCAL 11 (ANCO ELECTRICAL) 185 exempt. As noted above, the General Counsel pre- sented no evidence of the dates of hire of any Of the nine employees. He made no affirmative show- ing that any of these employees were hired before the strike ended. He; consequently, has failed to es- tablish by a preponderance of evidence that the Respondent's attempt to discharge employees was unlawful. We, therefore, reverse the judge on this issue and shall dismiss the complaint in its entirety. ORDER The complaint is dismissed. DECISION STATEMENT OF THE CASE JESSE KLEIMAN, Administrative Law Judge On the basis of charges .filed by John G Kelley, an individual,' and Albert E. Kelley, an individual, 2 on October 22, 1981, 3 the General Counsel of the National Labor Rela- tions Board, by the Regional Director for Region 31, Los Angeles, California, issued an order consolidating these cases, a consolidated complaint and notice of hear- ing on December 30, 1981, against the International Brotherhood of Electrical Workers, Local Union No. 11, AFL-CIO, the Respondent, alleging that the Respondent engaged in certain unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the National Labor Relations Act, the Act. On February 10, 1982, the Respondent filed its answer denying the material allega- tions in the consolidated complaint. A hearing was duly held before me in Los Angeles, California, on September 14, 1982 All parties were af- forded full opportunity to appear, to introduce evidence,- to examine and cross-examine witnesses, to argue orally on the record, and to file briefs. At the commencement of the hearing the Respondent moved "that the charges were not served on the charged parties until, past 6 months from the date of the alleged conduct, and there- fore, they are time-barred under Section 10(b)." 4 I re- served decision on the motion. The Respondent also moved "to strike paragraph 14 of the Complaint," for the reason that "The basis for the motion is that I do not believe the statute prohibits attempts at violations. It is 'a strict liability statute. It describes Section 8(a) and (b) 1 Case 31-CB-4422- 2 Case 31-CB-4422-2 3 The dates of the service of the charges on the Respondent are in dis- pute as set forth hereinafter 4 In response to this motion counsel for the General Counsel asserted that "while the charges were served at a later date, the Respondent fur- nished a witness to these—to supply evidence during the investigation of both these charges in November, 1981, subsequent to the filing of the charges and was certainly aware of the charges and certainly cannot argue that they were prejudiced by the late service, which General Counsel will contend was within the 10(b) period " John G Kelley, rep- resenting himself at the hearing, and with regard to this motion, stated that he had mailed copies of the charges to the Respondent at the same time that he also, by mail, filed the charges with the Board Additionally Kelley alleged that he had served a copy of the charges on Richard J Davis Jr, counsel for the Respondent, at his office "prior to.the expira- tion of the time limit" Davis' response to this was, "I am afraid not, your Honor" specific unfair labor practices. It does not proscribe at- tempts." I denied this motion. At the conclusion of the General Counsel's case the Respondent moved to dismiss the consolidated complaint for failure ,of proof. I also denied this motion. At the close of the hearing the Re- spondent renewed all its previous motions made during the course of the hearing. 1 reserved decision thereon. Thereafter both the General Counsel and the Respondent filed briefs. For the reasons hereinafter set forth, I deny the Respondent's motion to dismiss the allegations in the consolidated complaint as being "time-barred" under Section 10(b) of the Act, its motion "to strike paragraph 14 of the complaint;" 3. and its motion to dismiss the con- solidated complaint' in its entirety for failure 'of proof However, I grant- the 'Respondent's motion to dismiss the unfair -labor practices allegations in the consolidated complaint concerning John and Albert Kelley On the entire record and the briefs of the parties,' and on my observations of the witnesses, I make the follow- ing FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER Ando Electrical Contractors, Inc.; the Employer, at all times material herein has been, and is now, a corporation organized under- and existing by virtue of the laws of the State of California, With an office and principal place of business located in- Glendora, California, ,where it is en- gaged in the electrical construction of commercial, indus- trial, and institutional structures in the construction in- dustry In the course and conduct of its business oper- ations the Employer annually sells goods or services valued in excess of ,$50,000 to customers or business en- terprises within the State of California, which customers or business enterprises themselves meet one of the Board's jurisdictional standards, other than the indirect inflow or indirect outflow standard and, additionally, the Employer annually derives gross revenues in excess of $500,000. The consolidated complaint alleges, the Re- spondent admits, and I find that the Employer is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. , II. THE LABOR ORGANIZATION INVOLVED The consolidated complaint alleges, the Respondent admits, and I find that the Respondent, International Brotherhood of Electrical Workers, Local Union No 11, 5 With regard to the Respondent's motion to strike par 14 of the con- solidated complaint, the Act specifically provides in Sec 8(b)(2) that it is an unfair labor practice for a labor organization or its agents "to cause or attempt to cause an employer to discriminate against an employee in viola- tion of subsection 8(a)(3) " (Emphasis added ) The Board has held that' a union's demand for the discharge of permaneni replacements hired during an' economic strike constitutes an "attempt to cause an employer to discriminate against an employee in violation of subsection 8(a)(3)" and is a violation of Sec 8(b)(2) and (1)(A) of the Act where such demand was without legal or contractual justification See Wismer & Becker, Contracting Engineers, 228 NLRB 779 (1977), remanded 603 F 2d 1383 (9th Cif 1979), Board's decision on remand 251 NLRB 687 (1980), United Rubber Workers Local 457 (Kenttle, Inc ), 147 NLRB 980 (1964) 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AFL-CIO, is, and has been at all times -material herein, a labor organization within the meaning of Section 2(5) of the Act. - Furthermore, the consolidated complaint alleges that, at all times material herein, the Respondent's .business representatives Douglas R. Cooley and Don -Skol have been, and are now, agents of the. Respondent, acting on its behalf, within the meaning of "Section 2(11) of-the Act." The Respondent denied this. The evidence ,herein shows that Cooley represented the Respondent and acted on its behalf in almost all of the Respondent's dealings with the Employer and. the Charging Parties herein which gave rise to the allegations of unfair labor prac- tices against it in the consolidated complaint. Moreover,- Don Skol represented the Respondent in grievance _hear- ings between it and the Employer. I therefore find that, at all times material herein, Cooley and Skol have been, and are now, agents of the Respondent, acting on its behalf within the meaning of Section 2(13) of the Act III. THE UNFAIR LABOR PRACTICES The consolidated complaint alleges that the Respond- ent sent referrals to the Employer in an attempt to re- place John Kelley and Albert Kelley and other perma- nent replacements hired by the . Employer during the economic strike and, through its agents, requested or -de- manded that the Employer discharge John Kelley and Albert Kelley hecause they lind -been hired as permanent replacements for economic strikers following expiration of a previous collectivelbargaining agreement between NECA and The Respondent and for reasons other than their failure or refusal to iender the periodic dues and initiation fees uniformly required by the Respondent as a Condition of acquiring or retaining • union membership. The consolidated complaint further alleges that, by these acts and ,conduct, the Respondent violated Section 8(b)(2) of the Act by attempting to cause the Employer to discriminate in regard to the hire or tenure, or terms or conditions of employment of employees in violation of Section 8(a)(3) of the Act, and vicilated Section 8(b)(1)(A) of the Act by restraining_ and coercing em- ployees in the exercise of the rights guaranteed in Sec- tion 7 of the Act.- The Respondent denies these allega- tions and asserts that its actions in demanding replace- ment of the employees hired during and after the eco- nomic strike ended, and the sending of union referrals from its hiring hall to the Erriployerobsites to accom- plish this, was a valid and lawful exercise of the hiring and referral clause in the collective-bargaining agreement between it and the Employer and therefore did not vio- late the Act. A The Evidince 1. The service of the charge. The consolidated complaint alleges that the charges in Cases 31-CB-4422-1 and 31-CB-4422-2 were served on the Respondent by certified mail about October 22, 1981. The Respondent denied these' allegations in its answer: However, the affidavits of service of a copy of the charges in the formal papers in evidence show . that copies of the charges were served by certified mail . on October 26, 1981 (Case 31-CB-4422-1), and October 23, 1981 (Case 31-CB-4422-2). Moreover, there are no return receipts in evidence for such service by certified mail on the Respondent and both affidavits of service seem to be copies of the originals, since in lieu of the actual signatures of the persons executing these affidavits there appears typed-in signatures.6 A consolidated complaint was served on the Respond- ent by certified mail on December 30, 1981, and the Re- spondent's answer was served on February 8, 1982 7 Subsequently, the Regional Director for Region 31 served second copies of the charges on the Respondent on March 3, 1982, and affidavits of the service and return receipts thereof are in evidence as part of the formal papers At the hearing, counsel for the Respond- ent alleged that the Respondent "was served with the complaint and filed his answer to complaint approximate- ly one month before it was served with the charges . March 8 and MarCh 9, 1982." In response counsel for the General Counsel noted that the Respondent had "fur- nished. a witness . . . to supply evidence in November, 1981, subsequent to the filing of the .charges." The Gen- eral Counsel offered no other evidence with regard to service of the chärges in this matter and the Respondent did not call ariy witness or produce any evidence con- cerning this issue In fact the Respondent chose not to call any witnesses at all on its own behalf in this pro- cêeding. 2. The hiring of John and Albert Kelley Timothy Anderson, president of the Employer, Anco Electrical Contractors, Inc., testified 8 that the Employer has been a member of the National ElectriCal Contrac- tors Association, Los Angeles County Chapter, herein NECA, since 1977. NECA is an employer associntion admits 10 membership employers in the building and construction industry, and which exists, in part, for the purpose of negotiating, executing, and administering mriltiemployer collective-bargaining agreements on behalf of its employer-members with the collective-bar- gaining representatives of their employees,, including the Respondent Union. Anderson stated that employer-mem- bers of NECA are bound by the terms and conditions of a collective-bargaining agreement negotiated between NECA and the Respondent, where such an employer has executed a "letter of assent A" agreeing to this. 9 The 6 Interestingly, an affidavit of second service of the charge in Case 31- CB-4422-2 is signed by the affiant "C S Cartwright" and by "Raquel Garcia" (Designated Agent), the same persons whose names appeared typed in on the initial affidavit of service of the charge, and the original typed date thereon, October 23, 1981, is crossed out and the date March 3, 1982, substituted (See G C Exh 1(e) and (0 ) The Respondent raised no objection to the receipt in evidence of these documents as part of the formal papers herein Additionally it should be noted that internal office code letter designations of the various types of charges against labor or- ganizations and/or employers filed with the Board appear on these affida- vits, "CB-CC-CE-CG-CP," which might indicate that various types of charges were also filed by or against this Respondent and/or this Em- ployer in other cases See Sec .102 113(a) of the Board's Rules and Regulations 8 Anderson was subpoenaed as a witness for the General Counsel 9 Also see Jt Exh 1 ELECTRICAL WORKERS IBEW LOCAL 11 (ANCO ELECTRICAL) 187 evidence shows that about June 12, 1981 10 until some- time in the latter part of July 1981, 11 the Respondent en- gaged in an economic strike against the employer-mem- bers of NECA including Anco Electrical Contractors, Inc., the Employer herein. Anderson stated that his em- ployees, who were members of the Respondent, partici- pated in the strike and, as a result thereof, the Employer virtually ceased its operations and in order to continue in business he proceeded to hire permanent replacements for the striking employees through advertisements in newspapers. Anderson added that from June 12, 1981, through July 31, 1981, the Employer hired 11 employees including John and Albert Kelley.' 2 Anderson testified that when he interviewed and hired the 11 employee replacements, it was his understanding that the strike was still in progress. He continued, I told them that there was a strike and that the strike would obviously be settled at some time in the future and that when the strike was settled that we would retain them as employees, and when we signed the new agreement, that we would make sure that the Union accepted them as members at some time in the ,future. . . . I told them that it may be a very long process, but in the end, that they would be accepted into the. Union as members, if they would just abide by the rules and regulations that we all would have to live by under the new agreement. Anderson added that he also told these employees that after the strike ended they would be required to become union members in order to continue working for the Em- ployer "because we would again be signatory to the agreement. . . That was one of the stipulations when they were hired." , John Kelley" testified that on July 20, 1981, he tele- phoned the Employer in response to its advertisement in the Los Angeles Times for electricians and was advised that the Employer was seeking "permanent replacements for employees currently engaged in a strike" The ,next day, July 21, 1981, Kelley and his brother Albert, also a journeyman electrician, visited the Employer's premises to be interviewed for possible employment by Tim An- derson, the Employer's president. Kelley related that An- derson advised them that, if hired, they would receive "lower than Union scale" until they could be evaluated 1 ° It appears that the previous collective-bargaining agreement be- tween NECA and the Respondent had expired " The record evidences some witness confusion as to Just exactly when the stnke ended This will be discussed in detail hereinafter i2 maintained throughout his testimony that he had hired John and Albert Kelley prior to the end of the strike and at a time when he believed the Employer was not bound by any collective-bargaining agreement in force between it and the Respondent Moreover, Anderson testified that when he had interviewed the prospective employees during the strike period and found them qualified, that this, in his own mind, constituted a "commitment" and it was his understanding that he had in fact hired such employees as of the interview date although he may have notified them of such hire at a later date i3 is a Journeyman electrician and he testified that, although he had previously been a member of other locals of the International Broth- erhood of Electrical Workers (IBEW), at the time of the hearing he was not a member of the Respondent Union local Also see Electrical Workers IBEW Local 441, 221 NLRB 214 (1975) as qualified journeyman electricians after which their pay would be increased to union scale. He stated that Ander- son told-them, in response to Kelley's question regarding their continued employment after the strike ended, that, f [T]hey were looking , for permanent replacements, and that they were not even sure if they were going to sign an agreement with the Union even if the other employers did sign one, and that we would be considered permanent employees and not subject to replacement.' 4 Kelley continued that they were not actually hired by Anderson that day but that on July 30, 1981, they "re- ceived word from Anco" by telephone that the Einploy- er was interested in employing them. Kelley added that he called Anderson the next day, July 31, 1981, where- upon Anderson hired both him and his brother Albert Kelley and they commenced work on August 4, 1981, at the Employer's Northrop Aviation jobsite in Hawthorne, California. Kelley recounted that when Anderson hired them on July 31, 1981, and since he "understood that the strike was over and Local 11 electricians had gone back to work," he again asked Anderson, how this would affect their status as employees and Anderson responded, "[lit would not, that they had not signed an agreement with the Local, and he did not even know if he was going to sign such an agreement." The testimony of Albert Kelley, concerning what An- derson had told the Kelleys when- they were hired, was similar to that given by his brother John Kelley, above Albert Kelley stated that during their conversation on July 21, 1981, Anderson had told them .that, [I]f we were hired, we would be permanent em- ployees for Anco. . . . My brother asked about the strike and everything, if we would be replaced by union members. And he said, no, if he hires us, he is hiring us as permanent employees. . . Well, he said that they had no agreement, with them, that they were on strike There was no agreement with Local 11 3. The economic ,strike ends John Kelley testified that "It was My understanding that the strike ended in July, sometime shortly after the 21st of July, but I am not sure of the exact date." 15 An- 14 On cross-examination and in an affidavit given to a Board agent during the investigatory stage of these proceedings, Kelley stated that Anderson had also told them that "anyone referred to Anco during any period when Anco is not a signatory to a collective bargaining agreement with the IBEW would not be replaced [T]he Company would not be obligated to replace us because we were referred during the time when Anco was not signatory to any collective bargaining agreement with the Union" 15 On cross-examination, Kelley testified as follows Q Do you know the date of the conclusion of the stnke7 A I believe the strike—the IBEW, workers went back to work sometime the last part of July, but the exact date I do not know Q Does the date July 21, 1981, refresh your recollection' A I recall July 21st Kelley also testified, "I had been listening to news service with respect to the strike at that time. and I had not—that is why I knew on July 31st that the Union had gone back to work because I heard it over the news" 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD derson testified that the strike ended "approximately the last day of July or first day of August, somewhere in that area." Anderson stated that the striking employees returned to work on a Thursday, but was unsure wheth- er the date was July 23 or July 30, 1981, both these dates falling on Thursday of their respective weeks. The 1981-1983 collective-bargaining agreement signed by NECA and the Responaent, which ended the strike, has an effective date thereon of July 22, 1981. 16 While Anderson was Unsure as to the exact date this agreement was signed, he testified, "It would have been the day before the strike ended, I believe . . we were informed there was an agreement reached and that we could go back to work." Concerning this, John Kelley testified as follows: Q. You now 'know, do . you not, that a collective- bargaining agreement was signed effective July 22, 1981? A. I do not know what you mean by "signed ef- fective-July [22], 1981." I am not sure if that means it was signed on July [22] or it was signed at some subsequent date and backdated to July [22] It is my 'understanding that that is the case.17 Moreover, while Kelley at first testified that he had heard rumors to the effect that the Union's membership had ratified the collective-bargaining agreement on July 31, 1981, "but that the contractors had not signed it. . . into effect," he did-admit uncertaintji as to the actual date the agreement was ratified or when he had heard the rumor of its ratification. The collective-bargaining agreement provides in perti- nent part, Sec. 4.05(a). The Union shall maintain a register of applicants for employment. . . . Sec 4.06. If the registration list is exhausted and the Local Union is unable to refer applicants for employment . ... •the Employer shall be free to secure applicants without using the Referral Proce- dure but, such applicants, if hired, shall have the status of "temporary employees.". Sec. 4.07. The Employer shall notify the Business Manager promptly . . . of such "temporary em- Jt Exh 1 " While Kelley admitted that he did not have "any evidence that the effective date indicated on [the collective-bargaining agreement, July 22, 1981] is not the date of signature" he testified in explanation of his above testimony, I have experience with other Local Unions of the IBEW I have been a member of the Local Union And I am aware that contracts are often continued to be negotiated after a strike is over, and that sometimes several weeks or- several months pass before the contract is finally signed and ratified by both parties, and whenever that hap- pens, It in every case occurs that the contract itself is dated as for the effective date at the end of the stnke or at the end of the time the past agreement lapsed There is a further basis When I spoke to Mr Anderson on the 31st, I asked him about the fact that since the strike—since I understood that the strike was over and Local 11 electricians had gone back to work, I asked him if that would—how that would affect our status as employees And he said that It would not, that they had not signed an agreement with the local, and he did not even know if he was going to sign such an agreement ployees" and. shall replace such "temporary employ- ees" as soon as registered applicants for employ- ment are available under the Referral Procedure Additionally, NECA and the Respondent executed a "Return-To-Work Agreement," bearing an "Approved" date of July 21, 1981, which states: Upon ratification of a new collective-bargaining agreement between I.B:E.W. Local Union No. 11 and Contractors represented by the Los Angeles Chapter, National Electrical Contractors Associa- tion, the following procedures shall govern the return to work of employees of the employer-con- tractor on the conclusion of the work stoppage. 1. Contractors shall first recall to employment those employees who were dispatched by Local 11 to that contractor, and were employed on the job on the date of the work stoppage. 2. If such employees choose not to return, or are un- available, or are not sufficient to meet the contrac- tors' need, the contractor shall resort to the ap- propriate Local Union hiring hall to request addi- tional employees in accord with the contractual dispatch rules. 3. Employees hired by contractors during the work stoppage may report to the appropriate Local Union hiring hall and may; if qualified under the regular procedures of the contractual dispatch procedure, register for dispatch from Local Union 11.18 4 What occurred thereafter The evidence herein shows that John and Albert Kelley were employed by the Employer on its Northrop Aviation jobsite from August 4 through 6, 1981, and then were transferred to its Biltmore Hotel jobsite downtown Los Angeles, California, where they worked from August 7 until August 31, 1981. John and Albert Kelley were terminated by the Employer on September 9, 1981, because of a "Reduction in Force."18 Anderson testified that sometime in mid-August, August 15, 16, or 17, 1981, the Respondent's business representative Douglas Cooley telephoned him and ad- vised that the Employer was "signatory" to the collec- tive-bargaining agreement between NECA and the Re- spondent and would therefore "have to comply with Section 4.07 in the agreement." He related that Cooley said that the employees who had been hired during the strike period "were temporary employees and that they would fall under the conditions of .Section 4.07." 20 An- derson stated, is R Exh D Anderson testified that he was unsure as to the date this agieement was actually signed IS The General Counsel does not allege that the actual termination of John and Albert Kelley by the Employer constituted an unfair labor practice in violation of the Act on the part of either the Employer or the Respondent 20 Anderson testified that Cooley had "[A]dvised me to abide by Sec- tion 4 07, which was replace the temporary employees 'with applicants for employment which were available under the referral procedure, as it states here" ELECTRICAL WORKERS IBEW LOCAL 11 (ANCO ELECTRICAL) 189 To the best of my .knowledge of recollection, I stated something to the effect that these people were hired as permanent replacement help and that to the best of my -knowledge, there was an agree- ment between the contractor's association and Local 11, that these people would be taken into the Union provided they follow all the criteria that was set forth for them to do so, and that he should probably talk with his Business Manager, and I would talk to my representative from NECA and find out how we should approach this, because they were not going to be replaced. Anderson continued that thereafter, in August and September 1981, he received several calls from Cooley "regarding this particular matter," with Cooley insisting that the Employer abide by Section 4 07 of the agree- ment and replace the "temporary employees" with refer- rals dispatched from the .Union's hiring hall, and Ander- son maintaining that the so-called temporary employees were permanent replacements for striking employees and the Employer would not replace them 21 He stated that the Respondent continued to seek the replacement of em- ployees, hired during the period of the economic strike, with referrals from the Union's hiring hall for several months, until the end of December 1981 22 Anderson testified that "within a week" after the strike ended and the striking employees returned to work, he requested referrals from the Respondent because "there was a con- siderable amount of work and we had to catch up for the month and a half that we had lost." He related that the Respondent could fill only "a very small portion" of the Employer's requests for additional employees. Anderson added that the Respondent continued to refer people from its hiring hall to the Employees jobsites "periodi- cally on and off" until sometime in December 1981, ap- parently in an attempt to replace the employees hired during the stnke. 23 He recounted that, during this period, the Respondent also dispatched its business repre- sentatives to the Employer's various jobsites to find out the status of employees working there. John Kelley testified that on August 13, 1981, after he had been advised by Anderson that the Respondent was "pressuring" the Employer to replace 'him on the jobsite with union-referred employees, and Anderson had sug- gested that they "clear through the Hiring Hall," he and his brother, Albert Kelley, went to the "Union Hiring Hall" at approximately 3 p m. that day. Kelley stated 21 Anderson testified that, during a telephone conversation he had with Cooley in mid-September 1981, he asked Cooley for a list of the names of the employees the Respondent wanted replaced and the reasons for such replacements signed by the Respondent's business manager, but that this had never been forthcoming 22 Although unsure, Anderson believed that the Respondent had sent approximately 23-30 referrals to the Employer's various jobsites during this period Moreover, John Kelley testified that about August 15 or 16, 1981, he observed that the Employer had hired four new employees at least three of whom, he was informed, had been referred by the Re- spondent through its hiring hall to the Biltmore Hotel jobsite 23 There is evidence in the record Of at least two grievances filed by the Respondent against the Employer for the latter's failure to discharge an employee hired dunng the strike and to hire a referral to the jobsite, albeit these "temporary employees," as defined by the Respondent, were working on the construction project that he spoke to Douglas Cooley, a , union business agent, telling Cooley that they currently-were employed by the Employer at its Biltmore Hotel jobsite and were there at the hiring hall to pay "any applicable union security fees." He related that Cooley said that the Respondent would "not have any dealings" with the Kelleys, or "recognize" their employment until they brought letters from their Employer evidencing their hire. According to Kelley, Cooley told them that thereafter, if- qualified, they would be required to register as "out of work" and be dispatched to a job whereupon they would then be required to pay the hiring hall fees. 24 Kelley recounted that Cooley explained that by "registering on the out-of- work book they would in effect be terminating their em- ployment with Anco Electrical Contractors, Inc., and would then be eligible for dispatch to other _jobs, but up until that time they would be subject to replacement by union-referred workers." Kelley continued that after he told Cooley that he would not sign the "out-of-work book," and that he did not care whether or not the Re- spondent "recognized" their employment and accepted the proffered fees, Cooley became "belligerent" and threatened to cause them "more trouble than we ever knew." The testimony of Albert Kelley regarding what had transpired at the union hiring hall on August 13; 1981, Was similar in most respects to thát given by his brother, John Kelley, as set forth above He stated that Cooley had told his brother that the Respondent would not "rec- ognize" them nor accept any payments unless they ob- tained a letter from the Employer stating that "[w]e were temporary _employees of Anco." 26 Kelley related that, after his brother had finished speaking to Cooley, he told Cooley that he was there for the very same reason, to pay the security fees, and that' Cooley re- sponded, in substance, that what Cooley had told his brother, John, previously also applied to him as well. Kelley added that they then left the hiring hall John Kelley testified that he telephoned Anderson later that day to apprise him of what had happened at the union hiring hall and that Anderson said, "I should not worry about it, that he would deal with the Union and that I should just go back to work and then not worry about it any further." Anderson testified that after the strike had settled he wrote letters to the Respondent indicating that John and Albert Kelley had been hired by Anco Electrical Con- tractors as "temporary employees." 26 Anderson stated that he characterized the Kelleys as "temporary employ- ees" because, "It is what we were told to do by both the Union and our association NECA In other words, we 24 In his affidavit, given to a Board agent, Kelley also stated, When we offered to pay any union security fees that might be due, Mr Cooley refused to accept our offer and said that the Union would not deal with us in any, way until I had received a letter from Anco informing them that we had been hired as temporary employ- ees He went on to say that we would be subject to replacement by Union-referred personnel " However, on cross-examination Kelley was unsure as to whether Cooley told them that they needed "a letter" from the Employer, or "a letter stating that they were temporary employees 26 These letters are dated August 17, 1981 See G C Exhs 2 and 4 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had to follow a- particular fornit to bring these people into the Union . . -per -the agreement stating how we were to go about bringing these permanent replacement help into the Union, so that we may keep them as a Union employee." He added that the letters, as worded, were part of the format he was instructed and required to follow "by NECA and the IBEW." John Kelley testified that on August 31, 1981, he, his brother Albert Kelley, and two other employees 27 of the Employer appeared at the union hiring hall "to offer to pay union security fees" to the Union in order to Cover themselves concerning their employment at Anco Elec- trical 28 Kelley related that he spoke to someone behind a "teller's window" who was not Cooley, advising him that they were there to pay the union security fees. Kelley stated that he was asked if a letter had been sent from the Employer to the Respondent to which-.Kelley replied that he had been informed by the Employer that this had been done. Kelley added, "As the conversation progressed, I had refused to -sign an application [for formal] union membership. And I had also refused to sign an authorization for dues check-off. And the man told me that if I did not sign those documents, that he would not clear me through the Hall." Kelley continued that Cooley now appeared on the scene and entered the conversation advising Kelley that the Respondent had received the required letters from the Employer and agreeing to allow Kelley "to pay the Hiring Hall fees and to receive a receipt without signing the dues check-off or the membership application form." 29 Kelley testified that when he discovered that the "dues receipt indicated that I was a temporary em- ployee, I immediately pointed out to Mr. Cooley that I was not a temporary employee, but Anco had hired me as a [permanent] replacement." He stated that Cooley then brought out the letter from the Employer and ex- hibited it to Kelley. This letter dated August 17, 1981, characterizes Kelley as a "temporary employee." Kelley related that after his brother Albert also paid the hiring hall fees and was given a receipt therefor, he advised Cooley that the other two employees were there to also pay "any fees that the Union required and to clear through the Hiring Hall." Kelley continued that Cooley asked these employees if they had "a letter from the Em- ployer" and when they responded that they did not, he showed them a copy of the "back-to-work agreement" and explained, [T]he way the back-to-work agreement would affect them would be that they would have to bring in a letter from the Employer, that after they " These employees were John Davis and Greg (last name unknown) 28 However, on cross-examination Kelley also testified that he had ad- vised these employees that they would be eligible for benefits under the collective-bargaining agreement and therefore they should all go to the union luring hall to offer to pay the union security fees, at which time Kelley Would speak on their behalf A somewhat similar statement is also contained in Kelley's Board affidavit Kelley also testified that he as- sumed that a collective-bargaining agreement had been signed between NECA and the Respondent pnor to August 31, 1981, because the strike had ended and Anderson "was suggesting on two separate occasions that I clear through the Hiring Hall" 29 See G C Exh 3 (Receipt for Hiring Hall Operating Expenses) brought the letter in, they would then be permitted to come in and register as out of work on the • -union's referral list if they were qualified to register. And that would mean that . . . their job at Anco Electric would be terminated and that they would then be dispatched by the Union when their turn came up to a job . . . and then at that time they would be eligible for . . . union fringe benefits and union pay scale and all the benefits of. . 1 the col- lective bargaining agreement. Albert Kelley testified that his brother John had told him that Anderson had now, for a second time, request- ed that they "try to get cleared again with the Union," and therefore they went to the union hiring hall on August 31, 1981, to accomplish this, accompanied by two other employees. The rest of his testimony concern- ing what happened at the union hiring hall on August 31 is similar to that given by John Kelley as recounted above. - ' B. Analysis and Conclusions 1. The 10(b) period Section 10(b) of the Act provides "That no complaint shall issue based upon any unfair labor practice occur- ring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made Section 102.14 of the Board's Rules and Regulations provides: Upon the filing, of a charge, the charging party shall be responsible for the timely, and proper service of a copy thereof upon the person against whom such charge is made. The regional director will, as a matter of course, cause a copy of such charge to be served on the person against whom the charge is made, but he shall not be deemed to assume respon- sibility for such service.30 Section 102.111 of the Board's Rules and Regulations provides: Charges . . . may be served personally or by regis- tered or certified mail or by telegraph or by leaving a copy thereof at the principal office or place of business of the person required to be served. The verified return by the individual so serving -the same, setting forth the manner of such service, shall be proof of the same, and the return post office re- ceipt or telegraph receipt therefor when registered or certified and mailed or when telegraphed as aforesaid shall be proof of service of the same.31 30 Also see Sec 101 4 of the Board's Rules and Regulations • " Sec 102 113(a) of the Board's Rules and Regulations, provides "The date of service shall be the day when the matter served is deposited in the United States mail or is delivered in person, as the case may be" Also see Laborers Local 264 (D G Construction Co ), 216 NLRB 40 (1975), Dow Chemical Co, 215 NLRB 910 (1974) ELECTRICAL WORKERS IBEW LOCAL 11 (ANCO ELECTRICAL) 191 Section 102 113(b) of The Board's Rules and Regula- tions provides: The person or party serving the papers or process on other parties in conformance with sections 102.111 and 102.112 shall submit a written statement of service thereof to the Board stating the names of the parties ,served and the date and manner of serv- ice. Proof of service as defined in section 102 112. shall be required by the Board only if subsequent to the receipt of the statement of service a question is raised with respect to proper service. Failure to make proof of service does not affect the validity of the service. Moreover, Section 10(b) is a statute of limitations and is not jurisdictional in nature. It is an affirmative defense and, if not timely raised, is waived.32 The consolidated complaint alleges that the charges in Cases 31-CB-4422-1 and 31-CB-4422-2 were served on the Respondent by, certified mail about October 22, 1981. The Respondent denied this in its answer. The burden of proving the allegations in a complaint is on the General Counsel including the above allegation regarding service. In support thereof the General Counsel offered affidavits of service by Board agents certifying that they had served the Respondent with copies of the charges in the above cases on October 26 and 23, 1981, respectively,,by "postpaid certified " However, there was no return receipt for the charges and the signatures on both affida- vits of service as well as the notary -public's signature thereon were typed in, rather than being the actual writ- ten signatures. While there is no explanation therefor in the record, I find and conclude that these affidavits are nonetheless sufficient in themselves tO sustain the finding that the General Counsel -has met such burden of proof 3 3 The affidavits of service are sworn to and notarized, and there is no evidence in the record which validly dis- putes their authenticity. 34 Further, the above finding and 22 Federal Management Co. 264 NLRB 107 (1982), ,McKesson Drug Co, 257 NLRB 468 fn 1 (1981), Varonic Division of Pend Corp, 239 NLRB 45 (1978) 22 Albeit Secs 102 III and 102 112 specifically provide that "the return post office receipt shall be proof of service" when service is made by certified mall, It does not sj)ecifically exclude other types .of proof of service, such as an affidavit of service. 24 The fact that no post office receipts for certified mail service of the charges were produced at the hearing might well give rise to various in- ferences both in favor of and against the respective, positions of the par- ties herein, i e; either that service was never effectuated, or that service was made and the receipts were lost or misplaced in other files Since the evidence appears to indicate that there were various charges filed in vari- ous types of cases affecting this Respondent (See the case code designa- tions on G C Exhs 1 (b, c, e, and f)) This might also account for the typed-In signatures on the affidavits of service since additional copies of the notice of filing of the charges and the charges themselves may have been- required for placement in the other case files (See G C Exh 1(0 with the October 23. 1981 date thereon having been crossed out and a new date of March 3, 1982, inserted therein ) Be that as it may, I am con- vinced that the affidavits of service of the charges dated October 26 and 23, 1981, respectively, are valid and authentic and constitute proper and sufficient proof of service as required by the Board's Rules and Regula- tions conclusion receives additional support from the fact that the Respondent cooperated in the . investigation of these charges shortly after they were filed with the Board, and from the fact that aside from the remarks made by coun- sel for the Respondent in connection with his opening motion for dismissal of the consolidated complaint on the grounds that the Respondent's "alleged conduct . . . [is] time-barred under Section 10(b)," and statements in the Respondent's brief that timely service of the charges was not made, the Respondent offered no evidence to sup- port this No officer, official, representative, or agent of the Respondent was called as a witness' to testify under oath, that the Respondent had failed to receive a copy of the charges filed in this matter until after the complaint was issued, and the second copies of the charges were served on it in March 1982. Moreover, since Section 10(b) of the Act is a statute of limitations and an affirmative defense which must be pleaded, as was in effect done so herein by the Respond- ent, the burden of proving such an affirmative defense rests squarely on the Respondent. As stated before, the Respondent failed to offer any evidence whatsoever on its behalf to support and sustain its burden of showing that Section 10(b) of the Act bars consideration of the charges herein alleging unlawful conduct on its part in violation of Section 8(b)(1)(A) and (2) of the Act. In view of all , of the above, I find and- conclude that timely service of a copy of the charges filed herein was served within the meaning of Section 10(b) . of the Act and the Board's Rules and Regulations and,. therefore, I deny the Respondent's motion to dismiss the consolidat- ed complaint as being "time-barred by Section 10(b) of the Act."35 2. The violations of Section 8(b)(1)(A) and (2) of the Act Section 8(b)(1)(A) Of the Act makes it an unfair labor practice for a labor organization to "restrain or coerce" employees in the exercise of the rights guaranteed them in Section 7 of the- Act, "Provided, That this paragraph shall not impair the right of a labor organization to pre- scribe 'its own rules with respect to the acquisition or re- tention of membership therein." 36 Section 3 of the Act protects the rights of employees to engage in union or other concerted attivities or to refrain from such activi- ties. The rights protected by Section 7, however, are lim- ited by the principle of exclusive representation set forth in Section 9(a) of the Act. 37 In view of the restraints im- 25 See General Marine Transport Corp, 238 NLRB 1372 (1978), enf denied 619 F 2d 180 (2d Or 1980) Moreover, whether or not John Kelley is found to be a credible witness, as_will be determined later, and particularly regarding his unsworn and unsupported assertion that he mailed a copy of his charge to the Respondent, such a finding would have no bearing one way or the other on my above finding-and conclu- sion concerning Sec 10(b) of the Act- 36 The purpose of and policy behind Sec 8(b)(1)(A), as set forth in Sec 10(b) of the Act, is "to protect the rights of individual employees in their relations with labor organizations 32 Sec 9(a) of the Act provides Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be. the exclusive representatives ofall the em- Continued 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD posed on individual employee rights by the principle of exclusive representatiOn, the courts and the Board have imposed on labor organizations a reciprocal obligation of the Act to fully and fairly represent all of the employ- ees." As the United -States Supreme Court stated in Vaca v. Sipes, 386 U.S 171, 177, 190 (1967). It is now well established that, as the , exclusive bargaining representative of the employees . . . the Union [has] a statutory duty fairly to represent all of those employees . . . [and that this duty] in- cludes a statutory, obligation to serve the interests of all members - without hostility or discrimination • toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary. con- duct. . . . . A breach of the statutory duty .of fair representa- tion occurs only when a union's conduct toward a member of the collective bargaining unit is arbi- trary, discriminatory, or in bad faith.39 A labor organization which fails to live up to this obli- gation unjustifiably restrains employees in the'exercise of their 'Section 7 rights , and ,thereby violates Section 8(b)(1)(A) of the Act - The duty of fair representation gives employees a correlative right under Section 7 to be represented without arbitiary, irrelevant, or invidious discriminatiOn by their exclusive representative 40 In its landrnark decision in Miranda Fuel Co., 140 NLRB 181 (1962), the Board held at 185: Viewing these mentioned obligations of a statutb- ry representative in the context of the "right" guar- anteed employees by Section 7 of the Act "to bar- gain Collectively through representatives of their own choosing," we are of the opinion that Section 7 thus gives employees the right to be free from unfair or irrelevant or invidious treatment by -their exclusive bargaining agent in matters affecting their employment. This right of employees is a statutory limitation on statutory bargaining representatives, and we conclude that Section 8(b)(1)(A) of the Act accordingly prohibits labor organizations, when acting in a statutory, representative capacity, from taking action against any employee upon consider- ations or classifications which are irrelevant, invidi- ous, or unfair.41 ployees in such unit for the purposes of collective bargaining in re- spect to rates of pay, wages, hours of employment, or other condi- tions of employment See Emporium Capwell Co v Western Addition Community Organization, 420 US 50, 61-70 (1975), NLRB v Tanner Motor Livery, 419 F 2d '216, 218-221 (9th Cir 1969) 38 NLRB v American Postal Workers'(U S Postal Service), 618 F 2d 1249 (8th Cir 1980), Teamsters Local 315 (Rhodes & Jamieson). 217 NLRB 616, 619 (1975), enfd 545 F 2d 1173 (9th Or 1976) 39 Also see Ford Motor Co v Huffman, 345 U S 330 (1953), Wallace Corp v NLRB, 323 U S 248 (1944), H H Robertson Co, 263 NLRB 1344 (1982) " Vaca v Sipes, supra, 386 U S at 177-178, 181-183, Kling v NLRB, 503 F 2d 1044, 1046 (9th Cir 1975) US Postal Service, 240 NLRB 1198 (1979), enfd in pertinent part 618 F 2d 1249 (8th Cu- 1980), Laborers Local 300 (Memorial Park Devel- opment), 235 NLRB 334 (1978) "Irrelevant considerations" include nonmembership in the union.42 A labor organization's arbitrary conduct alone may suffice to establish a violation of the duty of fair repre- sentation. 43 Without any hostile motive of discrimination and in complete good faith, a labor organization may pursue a course of action that is so unreasonable and ar- bitrary as to constitute a violation of its duty of fair rep- resentation. However, in evaluating whether such con- duct is so arbitrary as to breach the duty of fair represen- tation, so long as a labor organization exercises its discre- tion in good faith and with honesty of purpose, a "wide range of reaionableness" must be allowed. 44 On the other hand, a labor organization may not impair individ- ual employee interests on the basis of personal prefer- ences.45 Section 8(a)(3) of the Act prohibits an employer from discriminating against its employees "in regard to . . . any term or condition of employment to encourage or discourage membership in any labor organization." Sec- tion 8(b)(2) of the Act makes it unlawful for any labor organization "to cause or attempt to cause an employer to discriminate against any employee in violation of Sec- tion 8(a)(3)." The Board and the courts have held that when a labor organization causes or attempts to cause an employer to discriminate against employees on an irra- tional or arbitrary ground, this conduct constitutes un- lawful encouragement of union activity within the mean- ing ' of Sections 8(b)(2) and 8(a)(3) of the Act 46 More- over, this is true regardless of whether or not that at- tempt is successful 47 The foreseeable intimidating effect on the workers is examined; specific evidence of an intent to encourage union membership is not essential." However, the Board has also consistently held that a labor organization possessed of a lawful exclusive hiring hall agreement does not violate Section 8(b)(2) by caus- ing or attempting to cause the discharge of an employee who is on the job without having complied with the con- tractual hiring hall procedures." As the Board stated in Operating Engineers Local 542 (Ralph A. Marino, General Contractor), 151 NLRB 497, 500 (1965): - As we construe the hiring and referral clause to require the Employer to utilize the union referral system in securing employees for the work in that area, the Union could, without violating the Act, properly seek the discharge of the employees in 42 Hughes Tool Go, 104 NLRB 318 (1953) 43 NLRB v American , Postal Workers (US Postal Service), 618 F 2d (8th Cir 1980), Griffin v Auto Workers, 469 F 2d 181, 183 (4th Cir 1972) 44 Ford Motor Co v Huffman, supra at 338 (1953), American Postal Workers, supra 45 Mere negligence, poor judgment, or ineptitude is insufficient to es- tablish a breach of the duty of fair representation See cases cited in fn 44, herein • 48 Barton Brands, Ltd v NLRB, 529 F 2d 793, 799 (7th Cu- 1976), on remand 228 NLRB 889, 891-893 (1977), Kling v NLRB, supra, 503 F 2d at 1046, American Postal Workers, supra 47 American Postal Workers, supra 48 Radio Officers v NLRB, 347 U S 17, 52 (1954) 49 Laborers Local 300 (Memorial Park Development), 235 NLRB 334 (1978), Laborers Local 1140 (Peter Kiewit Sons), 204 NLRB 151 (1973) ELECTRICAL WORKERS IBEW LOCAL 11 (ANCO ELECTRICAL) 193 question who had bypassed the Union's referral system. Moreover, in NLRB v. Mackay Radio & Telegraph Co., 304 U S. 333, 345-346 (1937), the United States Supreme Court held it does not follow that an employer, guilty of no act denounced by the statute, has lost the right to pro- tect and continue his business by supplying places left vacant by strikers. And he is not bound to dis- charge those hired to fill the places of strikers, upon the election of the latter to resume their employ- ment, in order to create places for them. As the Board stated in Bio-Science Laboratories, 209 NLRB 796, 797 (1974),5° Subsequent cases° have not altered the Mackay Radio rule that an employer is under no obligation to discharge or lay off permanent replacements at the termination of an economic strike. The decisions - in Fleetwood, Laidlaw, and Brooks Research all relate to rights of economic strikers to job openings oc- curring when permanent replacements qua their jobs subsequent to the termination of a strike. '5 NLRB v Fleetwood Trailer Co. Inc. 389 Us 375 (1967), The Laidlaw Corporation, 171 NLRB 1366. enfd 414 F 2d 99,(C A 7), Brooks Research & Manufacturing, Inc , 202 NLRB 634 While the Board has held that, under Laidlaw," an employer is under an obligation to place permanently re- placed economic strikers on a preferential hiring list, it has also held that a union's concern about getting all strikers back to work in preference to strike replace- ments is "[c]learly a legitimate bargaining demand,"" and therefore the Laidlaw reinstatement rights of eco- nomic strikers may be cut off by an agreement between the union and the employer reached in the give-and-take of collective bargaining." And a union may lawfully seek the reinstatement of economic strikers and the layoff of strike replacements pursuant to a nondiscrimina- tory system of layoff and recall without violating Section 8(b)(1)(A) and (2) of the Act. However, it is well estab- lished that a union may not 'discriminate against employ- ees who exercise their Section 7 right not to join a strike.°4 The Respondent asserts in its brief, "Even if General Counsel could prove his best case, that `case' has consist- ently been held not to constitute , a violation of the Act by the Board's Advice Division " 55 I do not agree with 50 Also see Bancroft Cap Co. 245 NLRB 547 (1979) Laidlaw Carp, 171 NLRB 1366 (1968) 52 Portland Stereotypers Union 48 (Journal Publishing Ca), 137 NLRB 782 (1962) 53 United Aircraft Corp. 192 NLRB 382 (1971) 54 See, e g, Rubber Workers Local 457 (Kenule, Inc ), 147 NLRB 980 (1964) 55 Stock Corp, UAW and its Local 644, 95 LRRM 1526 (1977), and "controlling here," Steelworkers Local 8560 (Spartek, Inc ), 103 LRRM 1238 (1979) the Respondent's conclusion nor as analysis of the law as applicable to the facts of this case In truth, the Advice Memorandum which the Respondent asserts "controls here" actually contains within it the requirement of a ruling adverse to .the Respondent. While this will be gone into in more detail subsequently, bnefly as stated in Steelworkers Local 8560 (Spartek, Inc.), 103 LRRM 1238, 1239 (1979): In the instant case, the Employer alleges that the Union initially sought to have all strike replace- - ments fired, even when the Employer was offering jobs for all employees . . Assuming, arguendo, that the Union initially proposed that all strike re- placements be terminated, the Union clearly has abandoned this proposal and, instead- is now re- questing a nondiscriminatory system of layoff and recall pursuant ,to 'seniority. Given these changed circumstances, it was concluded" that it would not effectuate the purposes of the Act to attempt to es- tablish a previous, technical violation of the Act, es- pecially since none of the strike replacements have been terminated However, as shown' by the evidence in the instant case, the Respondent persisted- in demanding that all the strik- er replacements be fired .even though the Employer had reinstated all the striking -employees who desired to return to their jobs and it never' abandoned this demand, continuing to send 'referrals to the Employer to replace these employees for several months after the end of the strike and the reinstatement of the striking employees. This constituted more than a "previous technical viola- tion of the Act." The evidence shows herein that the employees of the Employer, Arico Electrical Contractors, Inc., Who were members of the Respondent Union, engaged in an eco- nomic strike .called by the Respondent at a time When there was no 'collective-Vargaining agreement in force and effect between the Respondent and the Employer. The evidence further shows that the strike commenced on June 12, 1981, and, in order to continue its business operations, the Employer commenced hiring new em- ploSrees to replace its striking employees. Timothy An- derson, the Employer's president, "testified that the Em- ployer hired 11 employees as "permanent replacements," including John and 'Albert Kelley, during the coarse of the strike. While the record , is confusing and somewhat unclear as to _the exact date, the economic strike ended and the striking employees, returned to work, with regard to John and Albert Kelley the evidence does indicate that they were actually hired subsequent to these events. John Kelley testified, "It is my understanding that the strike had ended-in July, sometime shortly after the 21st of July, but I am not- sure of the exact date." Kelley also testified as follows. A. I . believe the strike-7-the IBEW workers went back to work sometime the last part of July, but the exact date I do not know, 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' Q. Does the date July- 21, 1981, refresh your recollection? 'A. I recall July 21st. Moreover, Kelley related that when he was hired by An- derson on July 31, 1981, he had inquired, what his status as an employee would be since he "understood" that the strike had already ended and the striking employees had returned to work by then. While Anderson testified, "I believe [the strike] ended approximately last day of July or first day of August, somewhere in that area," he also stated that the striking employees had returned, to work on a Thursday which, according to the evidence herein and the use of a 1981 calendar, could only have occurred on July 23 or 30, 1981. Furthermore, the 1981-1983 collective-bargaining agreement between NECA and the Respondent provides for an effective date of July 22, 1981, and Anderson testi- fied that although unsure as to the exact date of the sign- ing of this agreement, "It would have been the day before the strike ended." Additionally, NECA and the Respondent executed a "Return-to-Work Agreement" which is dated July 21, 1981. Considering the issue of credibility at this time, the Respondent in its brief asserts that John Kelley "lied," "fabricated 'statements," and engaged in "clear perjury" and thereby "contemptuous" conduct at the hearing which requires the discrediting of his testimony as a whole, and consideration of "referral 'of this case to the United States Attorney for review of Kelley's testimo- ny." The Respondent also maintains that the testimony of Albert Kelley. must be disbelieved because he merely "ventriloquized" the testimony of his brother John Kelley. I disagree with the Respondent on both counts., In reviewing the testimony of John Kelley and the particular segments thereof which the Respondent points to as illustrative of Kelley's "lies," "fabrications," and "clear perjury," I find that as to most of these instances the Respondent has drawn unwarranted inferences in support of its position, reflecting on almost out-of-con- text consideration b , the Respondent of Kelley's 'state- ments; while in other instances the Respondent has drawn inferences from answers given by Kelley, favor- able to its own positicin herein, although various other inferences, not supportirig its contentions; could also rea- sonably be applicable. For example, as the Respondent sets forth in its brief: At page 83 of the Transcript. Kelley questions if the new Agreement= was signed on July 21 or it was signed at some subsequent date and backdated to July 21st.' "It 'is my understanding that that - is the case." (Emphasis ours.) The Administrative Law Judge noted this at page 84, lines 17-19, 22-25, de- spite Counsel for the General Counsel's efforts to divert the Court's 'attention. Following the Court's intervention, Kelley realized his error and answered that in fact he had no evidence. When the Court asked, at lines 10-11 of page 86 of the Transcript "What was the basis for your answer before?" Kelley quite simply lied, 'Saying at' page 87, line 1. "But I did not indicate that I did." (Emphasis ours.) Kel- ley's initial admission is accurate and his clear perju- ry, in direct response to the Administrative Law Judge, is contemptuous. However, consider the actual testimony as given in its full context. On recross-examination by counsel for the Respondent, the following testimony appears in the record: Q. You now know, do you not, that ,a collective bargaining agreement was signed effective July 22, 1981? A. I do not know what you mean by "signed ef- fective July [22], 1981 " I am not sure if that means it was signed on July [22]. It is my understanding that that is the case. J - Q. Did you testify on cross that the date July 21, 1981 refreshed your recollection as to the date the back-to-work agreement was signed ? - A. No, I did not.56 Q. Do you have any evidence whatsoever that the date on page 50 of Joint Exhibit 1 is not the curate date? - At this point in the record, counsel for the General Counsel raised an objection to this line of questioning re- garding the collective-bargaining agreement on the grounds that Kelley was not a party to the agreement or the negotiations thereon and would therefore 'have no knowledge thereof. After referring counsel for the Gen- eral Counsel to Kelley's previous answer, that it was .his understanding that the collective-bargaining agreement had been backdated, I overruled the objection How' this can be• characterized as "Counsel for the General Coun- sel's efforts to divert the Court's attention" is beyond my understanding. Kelley's testimony continues Q Do you have any evidence that the effective, date indicated on page 50 of Joint Exhibit 1 is riot the date of signature? A. No, I do not. JUDGE KLEIMAN: What. was the basis for your answer before? • THE WITNESS: I have experience with other Local Unions of the -MEW. I have been a member of the Local Union. And I am aware that contraCts are often continued to be negotiated after a strike is over, and that sometimes several weeks or .several months pass before the contract is finally signed and ratified by both parties, and whenever that hapliens, it in every case occurs that the. contract , itself is dated as for the effective date at the end of the strike or at the end of the time the past agreement lapsed. JUDGE KLEIMAN: SO it may have been signed subsequent ' 5 6 As to this, Kelley's answer is accurate since the question directed to him on cross-examination referred to the date the strike ended, and.not to the date the "back-to-work agreement" was signed , , • ELECTRICAL WORKERS IBEW LOCAL 11 (ANCO ELECTRICAL) 195 THE WITNESS Although it may have been signed subsequently. JUDGE KLEIMAN: DO you have— THE WITNESS: I have no evidence that it took place in this case. But, I did not indicate that I did. JUDGE KLEIMAN I am just trying to determine the basis of your reason. It is conjecture— THE WITNESS: There is a further basis . When I spoke to Mr. Anderson on the 31st, I asked him about the fact that since the strike—since I un- derstood that the strike was over and Local 11 - elec- tricians had gone back to work, I asked him if that would—how that would 'affect our status as em- ployees. And he said that it would not, that they had not signed an agreement with the Local, and he did not even know if he was going to sign such an agreement. When the above testimony is considered as a whole, it certainly cannot be said that Kelley "quite simply lied" or committed perjury. Kelley testified that it was his un- derstanding that the collective-bargaining agreement had been backdated and he explained the basis for his "un- derstanding" which did not appear to me to be incredible or unbelievable. Also, Kelley never stated in his testimo- ny that he had actual evidence of the backdating of the agreement and therefore his testimony that he had not said that he did was true and not a he. Additionally, the Respondent in its brief alleges fabri- cation by Albert Kelley in his testimony concerning whether or not Cooley had requested a letter from the Employer stating that the Kelley's were employed as "temporary employees." At first Albert Kelley testified that Cooley had said that he wanted a letter "that said we were temporary employees of Anco." On cross-ex- amination however Kelley was less sure of this testifying, "A letter of temporary employee—I do not—not sure if he said temporary ccimpletely, you know, but it was—he said you had to have a letter" The following testimony was given soon thereafter: Q. I am trying to focus your attention on wheth- er or not "temporary" was mentioned on the 13th of August. Did you or did your brother, John, raise any objection to Mr. Cooley's statement at that time? A. It must have been "temporary employee" be- cause there was some objection raised. Q. What was the objection? A. That we were not temporary employees Q. And who said that? A. John: Q. And when did he say that? A. The 13th. Q. The 13th? A. Yes. Q., Or the 31st? A. Well, he said the 31st also. Q. When did he first say it? A. I am' really not sure. I cannot—I 'think he said it on the 13th. I know; he said it on the 31st. But I am not—I am not positive. I cannot give you a— JUDGE KLEIMAN Again, did Mr Cooley use the words, "temporary employee," or did he just ask for a letter? Which, if you can recall? Or can you not remember? THE WITNESS: I cannot recall that well right now I cannot recall I mean, I would not want to bet my life on It. JUDGE KLEIMAN: Well, to the best of your recol- lection with regard to your reporting about a letter? THE WITNESS: That we had to have a letter is—. JUDGE KLEIMAN: SO that he did not mention "temporary employee?" THE WITNESS Right, I am not sure about that. I cannot be positive about it.57 I do not consider the above to reflect that Albert Kelley sought to "fabricate" evidence. It appeared to me that Kelley desired to testify as to what had actually oc- curred as truthfully and as accurately as his memory could recollect Additionally, the events which occasioned the witness' •testimony at the hearing had -occurred more than a year previously and it is not surprising that there was some uncertainty and failureS of recollected exactness as to dates and statements made during the course thereof.58 And the Respondent offered no evidence itself to clarify or shed light on any of the occurrences, although it could well be supposed that, as to some of these events, the Respondent was in a better position to present evi- dence thereon and to clarify and complete the record than any of the other parties. This is not to say that the Respondent was obligated to assist the General Counsel in sustaining his burden of proof as to the allegations in the consolidated complaint, but the Respondent did have the responsibility of supporting its positions taken in this proceeding especially if the General Counsel has estab- lished a prima facie case. As to Anderson's testimony, while he was unsure as to the exact dates of some of the events which occurred herein, i e, the dates that the strike ended and the strik- ers returned to work, yet his testimony for, the most part remains uncontradicted. Anderson was subpoenaed as a witness for the General Counsel, he did not volunteer to At this juncture in Albert Kelley's testimony, his brother John Kelley requested permission to,ask a question I denied the request ex- plaining that, if I allowed him to do so, it would constitute improper pro- cedure on my part The Respondent asserts in its brief, "Respondent hopes that the Administrative Law Judge recalls that when John Kelly sought to intervene to' save his brother's 'testimony,' he had to be denied" However, John Kelley appeared at the hearing on his own behalf, as a layman without formal legal training, and his request to ask a question at this point is reasonably subject to other interpretations beildes that of "saving his brother's testimony" For example, it is not unusual for witnesses present at the hearing, and before they are called to the stand, to volunteer remarks or answers or ask a question out loud during the course of another witness' testimony, in a burst of enthusiasm to tell their own story or to Provide an accurate and complete record of what occurred, being unable to control themselves or not realizing that this is improper Besides, there is absolutely no evidence in the record to sup- port the Respondent's contention that John Kelley had acted as he had in order to "save his brother's testimony" 58 It is not unusual for witnesses, who may be generally believed: to give testimony that in part may be unclear or somewhat inconsistent be- cause of the passage of time requiring the remembrance of things lohg past See Photo Drive Up, 267 NLRB 329 (1983) 196 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD 'appear, and I perceive no actual reason or ulterior motive for him not to have told the truth under oath since no allegations of unfair labor practices were made herein against the Employer or are contained in the con- solidated complaint.. On all the above considerations, and having also based my findings on my observation of the demeanor of the witnesses, the weight of the respective evidence, estab- lished or admitted facts, inherent probabilities, and rea- sonable inferences which may be drawn from the record as a whole," I credit the testimony of John and Albert Kelley and Timothy Anderson, except where it is un- clear, or exhibits doubt or a failure of recollection.60 In applying the legal principles enunciated by the above court and Board cases to the facts in the instant case it should first be noted that, at the conclusion of the economic strike, the Employer reinstated all the striking employees who wanted to return to work and the Re- spondent has not contended that the employees hired as permanent replacements during the strike deprived the returning strikers of their jobs. Moreover, since Ander- son testified uncontradictedly that the Employer hired-11 electrician employees from June 12, 1981, when the eco- nomic strike began and until July 31, 1981, when it was over, it is a reasonable assumption, without evidence having been introduced to the contrary, that some, if not all, 9 of the remaining employees, excepting the Kelleys; were hired during the course of the strike and before it ended in late July 1983. 6i Therefore, there was no legal basis for - the Respondent's demand that the Employer discharge all the- permanent employees hired during the strike as replacements for the striking employees and hire, in their stead, referrals from the Respondent's hiring hal1.62 Nor was there a contractual justification for the Re- spondent's repeated demands to discharge these perma- nently hired striker replacements. The "Return-To-Work Agreement" specifically provides that employees hired during the economic strike "may report to the appropri- ate Local Union hiring hall and may, if qualified under the regular procedures of the contractual dispatch proce- dure, register for dispatch from Local Union 11." There is no requirement for their discharge and use of the dis- cretional "may" also does not require them to register for dispatch from the Respondent's hiring hall to main- tain their jobs with the Employer. Thus the demand by the Respondent for the discharge of the permanent strik- er replacement employees on the grounds that they were actually "temporary employees," subject to replacement 59 Gold Standard Enterprises, 234 NLRB 618 (1978), V & W Castings. 231 NLRB 912 (1977), Northridge Knitting Mills, 223 NLRB 230 (1976) Also see Cas Walker's Cash, 249 NLRB 316 (1980) 60 As Judge Learned Hand stated in NLRB v Universal Camera Corp. 179 F 2d 749, 754 (2d CH- 1950), It is no reason for refusing to accept everything that a witness says, because you do not believe all of It, nothing is more common in all kinds of judicial decisions than to belieVe some and not all Si Anderson's testimony, that the Employer's operations had "virtually ceased" when the strike began on June 12, 1981, because its employees joined the economic strike and that the Employer was compelled to seek and hire employees to replace the strikers in order to maintain its busi- ness, would support this assumption 62 NLRB v Mackay Radio & Telegraph Co, supra, Bio-Science Labora- tories, supra, 209 NLRB 796 (1974) by referrals. from the Respondent, has no contractual jus- tification therefor. In view of the -above, - and inasmuch as there was nei- ther legal rior contractual justification for the Respond- ent's demands, from mid-August through December 1981, that the employees who had been hired *during the economic strike as permanent replacements' for striking employees be replaced by union referrals, the Respond- ent thereby restrained employees in violation of Section 8(b)(1)(A) of, the Act, and attempted to catise the Em- ployer to discriminate against employees, i.e., to encour- age membership in the Respondent Union, in violation of Section 8(b)(2) of the Act." Moreover, the Respond- ent's dispatch of referrals in mid-August through Decem- ber 1981, in an attempt to replace these permanent em- ployees, likewise lacked legal or contractual justification and thereby also violated Section 8(b)(2) and (1)(A) of the Act.64 With regard to John and Albert Kelley, the Charging Parties herein, the evidence shows that they were actual- ly hired after the strike ended and the striking employees had returned to work While Anderson insisted that they were hired prior to the end of the strike, John Kelley's own testimony contradicts this as noted above Besides, Anderson admitted to a lack of sureness and recall as to the pertinent dates of events which' transpirea and, al- though I generally credit his testimony, I cannot accept or rely on his recollection as to this. The 1981-1983 col- lective-bargaining agreement has an effective date of July 22, 1981. 65 The "Return-to-Work Agreement" is dated July 21, 1981." The Kelleys were hired on July 31, 1981. Thus I must conclude that the bargaining agreement was in effect prior to the -KelleYs being hired. This being so, the Kelleys were ",temporary employees" as provided for in sections 4.06 and 407 of the collec- tive-bargaining agreement, and subject to replacement thereunder "as soon as registered applicants for employ- ment are available under the Referral Procedure."67 63 Wzsmer & Becker, Contracting Engineers, supra, 228 NLRB 779 (1977), Bio-Science Laboratoizes, supra, Rubber Workers Local 457 (Kenule, Inc ), supra 64 Should the Respondent assert that the Issue of the employees hired as permanent replacements for the striking employees during the strike was not fully tried or considered by it, because the thrust of the General Counsel's case was directed towards the allegations in the consolidated complaint regarding Charging Parties John and Albert Kelley, I note that the consolidated complaint specifically refers to the Kelleys and "other permanent replacements hired by the Employer during the economic strike," and in the testimony given by the General Counsel's witnesses, the facts and circumstances testified to were sufficient to establish a prima facie case of violations of the Act as to these employees The Re- spondent totally Ignored its obligation thereafter to prove that its actions herein were justified and not violative of the Act The Respondent called no witnesses and, except for Its introduction of the two agreements re- ferred to above, the bargaining agreement as a joint exhibit, and the "Return-to-Work Agreement" as its own exhibit, It offered no other evi- dence on its own behalf 65 No evidence was offered to show that this agreement has been backdated or was not signed on it effective date July 22, 1981 66 There is no evidence in the record as to when this agreement was ratified by the Respondent's membership, as required by its terms 67 While Anderson testified that in and around this time the Respond- ent was unable to fill all the requests by the Employer for electrician re- ferrals from its hiring hall, this would not affect the above ELECTRICAL WORKERS IBEW LOCAL 11 (ANCO ELECTRICAL) 197 Therefore, when the Respondent demanded that John and Albert Kelley be replaced by referrals from its hiring hall and actually sent union referrals to the Em- ployer's jobsites to accomplish this end, it did not violate the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III; above, found to constitute unfair labor practices oc- curring in connection with the operations of the Em- ' ployer described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I shall recommend that it cease and desist 'therefrom and take certain affirmative action to effectuate the policies of the Act. In light of the standards set forth in Hickmott Foods, 242 NLRB 1357 (1979), I conclude that a broad remedial order is inappropriate since it has not been shown that the Respondent-has a proclivity to violate the Act or has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for the employees' fundamental right Accordingly, I recommend the use of the narrow injunctive language "in any like or related manner" in the recommended Order. CONCLUSIONS OF LAW 1. Anco Electrical Contractors, Inc. is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondent, International Brotherhood of Elec- trical Workers, Local Union No. 11, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. . 3. By demanding that the Employer discharge or oth- erwise discriminate against its employees, and by dis- patching union referrals to accomplish this purpose, the Respondent has attempted to cause the Employer to dis- criminate against its employees in violation of Section 8(a)(3) of the Act, and thereby •has violated Section 8(b)(2) of the Act 4. By restraining and coercing employees of the Em- ployer in the exercise of rights guaranteed in Section 7 of the Act, the Respondent Union has violated Section 8(b)(1)(A) of the 'Act. 5. The Respondent has committed no unfair labor practices in connection with employees John and Albert Kelley 6. The unfair labor practices found above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order is omitted from publication.]